The Basics of Probate

"Probate" is used to describe the legal process by which a deceased person’s affairs are settled and his property distributed to those who are entitled to receive it. This Classroom covers the basic issues involved in probate including the role of a personal representative, the special protections for family members, a review of the intestacy rules, which describe how an estate should be divided when there is no Will and the options to consider when deciding whether "to probate or not to probate." The second section discusses the actual probate process, from filing the probate petition to completing the work as the personal representative.

Authored By: Alaska Legal Services Corp.

The Basics of Probate: Intestacy

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Basics of Probate

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Basics of Probate

Where does property go if there is no Will?

If you die without a Will, your property will be divided according to the laws of intestacy. These laws are intended to reflect what most people would want - keeping the property within the close family.

The Surviving Spouse’s Share

If you die without a will and were married, yoursurviving spouse receives:

All of your estateif 1) there are no surviving parents, children, or grandchildren, or 2) all of your surviving children and grandchildren are also the descendants of your surviving spouse and there are no descendants of the surviving spouse unrelated to you (i.e. step-children); or

The first $200,000 plus 3/4 of the rest of your estateif you have no surviving children or grandchildren but you do have a surviving parent; or

The first $150,000 plus 1/2 of the rest of your estateif there are surviving children or grandchildren (all of whom are the children or grandchildren of your surviving spouse) AND your surviving spouse has children or grandchildren unrelated to you; or

The first $100,000 plus 1/2 of the rest of your estateif one or more of your surviving children or grandchildren are from a previous marriage or relationship.

These rules apply after allowances and bills are paid.

No Surviving Spouse

If you were not married at the time of your death and died without a Will your property passes in the following order to the individuals designated below who survive you:

  1. To your children;
  2. If you have no surviving children or grandchildren, to your parents equally if both survive, or to the surviving parent;
  3. If you have no surviving children, grandchildren, or parent, then to your parents’ descendants (i.e. your brothers and sisters);
  4. If you have no surviving children, grandchildren, no surviving parent, or surviving siblings, your property will be divided equally between the surviving grandparents, or descendants of your grandparents if one or both grandparents are deceased.

Please note,restricted Native property follows federal law, which is slightly different.

No Survivors

If you have no surviving relatives in the above categories, only then will your property go to the State of Alaska. There is an exception: ANCSA stock goes back to its issuing corporation rather than to the state if there is no heir.

Limits on “takers”

Distribution under intestacy is not quite as simple as indicated above. Several rules limit takers (those who can “take” from the estate) even though they appear to be eligi­ble as heirs.

Spouses

A spouse must still be married to take. Divorced spouses don't take. Neither do those whose marriages have been annulled. But separated spouses who survive their not-so-beloveds are entitled to take regardless of whether the divorce hearing was scheduled for the date of death, unless there is a valid waiver or a court order terminating all marital property rights.

Time of Survivorship

All heirs have to live at least 120 hours after the decedent. If they don't, or if it's impossible to tell whether or not they did, the estate is divided as if they died before the decedent.

Blood relation

Being a relative of the half-blood is no bar to receipt of a full share.In other words, anyone related by half blood to the person who died inherits the same share that he or she would if related by whole blood.

Children

A child conceived before the decedent's death, but born afterward, is treated as if born before.

Adopted children are treated as children in their adoptive families, taking a share as if they were natural children.

Illegitimate children are "children" of the mother, and also of their father, even if the parents were never married.

Prior Gifts

Heirs who received gifts from the decedent during her life do not have to count them against any share unless testator said so at the time of the gift, or the heir acknowledges such an intention.

Foul Play

A person found guilty of intentionally killing the deceased doesn’t get to inherit from the deceased and is treated as though he or she died before the deceased.

These intestacy rules can be difficult to apply, so if there are questions as to the correct interpretation of them, you may have to consult a lawyer or ask the court to make a decision.

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